By Cristiano d'Orsi
Article 14 of the 1948 Universal Declaration of Human Rights (UDHR) concerns the right ‘to seek and to enjoy […] asylum’ (Article 14(1)), subject to exceptions (14(2)).
In the words of A. Edwards (2005) ‘[i]n contrast to the right to seek asylum, the right to enjoy asylum suggests at a minimum a right “to benefit from” asylum. While a state is not obligated to grant asylum, an individual, once admitted to the territory, is entitled “to enjoy” it’ (p. 302). It is clear that the right to ‘enjoy’ asylum primarily means the opportunity for refugees to benefit from the rights that are listed in the 1951 Convention Relating to the Status of Refugees (Refugee Convention) both civil and political, as well as cultural, economic and social rights. More specifically, the Refugee Convention includes rights related to freedom of religion (Article 3), property (Article 13), artistic rights and industrial property (Article 14), right of association (Article 15), access to courts (Article 16), wage-earning employment (Article 17), self-employment (Article 18), recognition of professional diplomas (Article 19), and welfare, social security and education (Articles 20 to 24).
This contribution investigates whether the right of ‘enjoying asylum’ has been translated into the African continent through the appropriate international, regional, sub-regional and domestic legal instruments. The relevance of this investigation is to understand whether and to what extent refugees hosted by the African countries are able to ‘enjoy’ the above-mentioned rights derived from their legal status of refugees.
The first regional legal instrument to be inspired by the non-binding iteration of the UDHR and to adopt a formula similar to Article 14 is the 1981 African Charter on Human and Peoples’ Rights (Banjul Charter). Its Article 12(3), recalling the right enshrined in Article 14(1) of the UDHR, stipulates that every individual persecuted shall have the right of ‘seeking and obtaining asylum’. Although the second verb used (after ‘seeking’) in the Banjul Charter is ‘obtain’ and not, like in the UDHR, ‘enjoy’, it is clear that ‘obtaining’ the right mentioned in Article 12(3) of the Banjul Charter seems in some way preparatory to the ‘enjoyment’ of the same right mentioned in Article 14(1) of the UDHR. This is so because to ‘enjoy’ a right (formulation of Article 14(1)), one must ‘obtain’ it first (formulation of Article 12(3) of the Banjul Charter).
To date, 54 out of the 55 member states of the African Union (AU) have ratified the Banjul Charter: the notable exception is Morocco, that has re-joined the AU only in 2017, having left the organization in 1984 after the AU (at that time still Organization of African Unity –OAU-) recognised the independence of Western Sahara. However, when it comes to the application of the institution of asylum, African countries, both in their sub-regional and domestic laws tend to neglect equally Article 14(1) of the UDHR and Article 12(3) of the Banjul Charter.
In protecting refugees and promoting the right to asylum, African states recall (and apply) mostly the Refugee Convention with its 1967 New York Protocol, and the 1969 OAU Convention Governing the Specific Aspects of Refugees Problems in Africa (OAU Refugee Convention). For example, among the most recent domestic refugee laws in Africa, the 2014 Rwandan Law Relating to Refugees, the 2017 Zambian Refugees Act and the 2021 Kenyan Refugees Act, do not contain any reference either to the UDHR or to the Banjul Charter.
On the other hand, however, neither the Refugee Convention, nor its New York Protocol and the OAU Refugee Convention contain a formula mentioning the ‘enjoyment’ of the right to asylum (after having obtained it). The Geneva Convention recalls, in an Introductory Note by the United Nations High Commissioner for Refugees (-UNHCR-, note added in 2010), Article 14 of the UDHR but only in the part about ‘seeking’ asylum, without going into further detail.
Any hope that the international community could have revamped a right to ‘enjoy’ asylum was lost when the text of the New York Declaration for Refugees and Migrants (adopted on 16 September 2016 as a resolution by the UN General Assembly: A/RES/71/1) limited itself only to reaffirming ‘respect for the institution of asylum and the right to seek asylum’ (para 67). Similarly, the 2018 Global Compact on Refugees (Global Compact) did not make any explicit mention of a right to ‘enjoy’ asylum.
At a regional level, the OAU Refugee Convention dedicates an entire article (Article 2) to the subject of ‘asylum’ but makes no reference to a possible right to ‘enjoy’ and/or ‘obtain’ asylum. This occurs despite the fact that in the OAU Refugee Convention, the UDHR is indicated in its Preamble (paragraph 6) as the instrument that ‘has affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination’ (this is the same formula used by the Refugee Convention in paragraph 1 of its Preamble).
Analysing several sub-regional African documents dedicated to the protection of asylum- seekers and refugees, such as, for example, the 2008 Economic Community of West African States (ECOWAS) Common Approach on Migration, and the 1998 Declaration on Refugee Protection made by the Heads of State and Government of the Southern African Development Community (SADC) countries, the expression of ‘enjoying asylum’ never appears. The same situation occurs analysing the domestic instruments of the African countries hosting the largest communities of refugees. Considering the official statistics for 2022, the top-5 African countries having hosted the largest refugee communities on the continent have been Uganda, Sudan, Ethiopia, Chad and the Democratic Republic of Congo (DRC) (Source: UNHCR). The 2006 Uganda Refugees Act, the 2014 Sudanese Asylum (Organization) Act, the 2019 Ethiopian Refugee Proclamation, the 2020 Chadian Loi sur l’asile as well as the 2002 DRC Loi portant statut des refugiés do not make any reference to the expression of ‘enjoy asylum’.
While African states continue to assert their sovereignty in relation to admitting aliens to their territory, their corresponding accession to varying international instruments binds them to certain standards in relation to the enjoyment of asylum. In this context, as above-mentioned, although the UDHR is non-binding per se, it sets the scene for the future elaboration of human rights standards, which do not generally distinguish between nationals and non-nationals. The continuing relevance of the UDHR for Africa is also apparent in the number of judgments from the African Court on Human and Peoples’ Rights referring to the value of the UDHR as a legal instrument in, for example, Omary and Others v. Tanzania, App. No. 001/2012 (28 Mar. 2014), paras 71–73, Sissoko and 74 others v. Mali, App. No. 037/2017, Judgment (25 Sep. 2020), paras 114, 124, 126, and Ajavon v. Benin, App. No. 062/2019, Judgment (4 Dec. 2020), para. 124. On the legally binding force of the UDHR, in 1996 H. Hannum wrote, ‘today [it] exerts a moral, political, and legal influence far beyond the hopes of many of its drafters’. We are now wondering if this affirmation is also valid in relation to the application of Article 14(1) of the UDHR in Africa.
A final answer to the previous question is not easy to provide. On one hand, we note the increasingly severe policies that many African states are undertaking vis-à-vis asylum-seekers and refugees, such as, for example, forced returns of forced displaced to dangerous territories.
These returns are often coupled with numerous rights enshrined in the Refugee Convention that are not guaranteed (or patently denied) to refugees on the continent. This, for example, is the case of South Africa, where some refugees are denied access to healthcare simply because they are foreign nationals. Something similar has historically also occurred in Kenya. Moreover, in Africa, refugees also struggle in many circumstance for protection against violence, for access to food and water, living in a safe house as well as finding a decent job.
Yet, the scenario is not always, and not everywhere, so dark. For example, in July 2023 under the supervision of UNHCR, the Kenyan Government adopted the SHIRIKA Plan. SHIRIKA stands for ‘Socioeconomic Hubs for Integrated Refugee Inclusion in Kenya’ but in Swahili, the official language of the country, ‘shirika’ can be translated as the word ‘organization’. The Shirika Plan is the Government of Kenya’s approach for to the management of refugees in the country and is aimed at transforming the Kenyan refugee camps into integrated settlements supporting the socioeconomic inclusion of refugees and hosting communities in the Garissa and Turkana regions, as well as in urban areas like Nairobi and Mombasa. This initiative can be coupled, for example, with the 2019 Kampala Declaration on Jobs, Livelihoods and Self-Reliance for Refugees, Returnees, and Host Communities adopted by the Intergovernmental Authority on Development in Eastern Africa (IGAD) and in which the relevant authorities of the member states agreed to ‘advance livelihood opportunities and economic inclusion to improve self-reliance of refugees, returnees and host communities’ (para 1). In another geographical context, Rwanda has made relevant progress in creating opportunities for self-employment and wage-earning opportunities for refugees, both in camps and outside. This situation has been made possible by a national policy permitting refugees to access formal employment using refugee identity cards (having a work permit is not necessary), as well as financial services to start and grow their businesses. The ability to move freely is also strategic to allowing refugees to look for opportunities outside the camps.
The above examples show that, concerning the opportunity of ‘enjoying’ asylum, the situation in Africa is still heterogeneous. Our hope is that efforts will be made for both implementing measures favourable to the wellbeing of refugees, where they have been already adopted, and to adopt measures in those contexts where refugees are still living in disadvantaged conditions and are (very) far from the ‘enjoyment’ of asylum.
Bio:
Dr Cristiano d'Orsi is a Lecturer and Senior Research Fellow at the South African Research Chair in International Law (SARCIL), Faculty of Law, University of Johannesburg. He holds a Laurea (BA (Hon) equivalent, International Relations, Università degli Studi di Perugia, Perugia); a Master's Degree (Diplomatic Studies, Italian Society for International Organization (SIOI), Rome); a two-year Diplôme d'Etudes Approfondies (Master of Advanced Studies equivalent, International Law, Graduate Institute for International and Development Studies, Geneva); and a Ph.D. in International Law from the same institution. Additionally, Cristiano has done post-doctoral studies at the University of Michigan Law School (Grotius Scholar) and at the Centre for Human Rights, University of Pretoria. His research interests mainly focus on the legal protection of displaced and forced displaced persons in Africa, on African Human Rights Law, and, more broadly, on the development of Public International Law in Africa.